RULING
Kensinghton Ltd (herein referred to as the applicant) is seeking orders that she be enjoined and/or converted as a Defendant in this suit. That upon such joinder/conversion, the Statement of Defence and Counterclaim dated 30/07/2024 and filed on 01/08/2025 be deemed as duly filed and served as the Defence and Counterclaim of the Defendant. That she be at liberty to adduce oral and documentary evidence in support of its Defence and Counterclaim. She ultimately prays that the costs of this Application be in the cause.
The application is based on grounds that the Applicant is the registered proprietor of all that parcel of land known as MN/V1/3866, the subject of these proceedings. That the Applicant has filed a Statement of Defence and Counterclaim raising substantive issues of ownership, title validity, and compensation that directly go to the root of this dispute.
The applicant contends that as presently constituted, she appears only as an Interested Party and under the Civil Procedure framework, an interested party cannot adduce evidence or fully participate in the trial as a defendant. That it is therefore necessary and in the interest of justice that the Applicant be joined as a Defendant to enable it to prosecute its Defence and Counterclaim and adduce evidence. That the issues in controversy cannot be effectually and completely determined without the participation of the Applicant as a substantive Defendant.
The applicant believes that no prejudice will be occasioned to any party by allowing this application, as all parties are already seized of the pleadings filed by the Applicant. That it is in the interest of justice, equity, and fair hearing that this Honourable Court exercises its discretion in favour of the Applicant.
The respondent filed grounds of opposition stating that based on the established Civil Procedure principles and Case law, an Interested Party in a suit commenced by Plaint 'is not permitted to introduce a new unrelated or different claim to be prosecuted within the existing suit and that based on established Civil Procedure Principles, Case law and rules of natural justice, a party who is not a named defendant in a suit commenced by way of Plaint cannot purport to impose himself as a defendant and purport to file its own Defence and Counter-Claim as sought by the Applicant. The role of an Interested Party is to participate in the adjudication of issues raised by the primary parties but not to initiate a separate cause of action.
The Applicant's application for joinder as a defendant has come late in the day when a substantial number of parties have closed their cases and therefore the Application is prejudicial and an affront to the right to fair hearing under Article 50(2) of the Constitution.
The Application is an abuse of the Court process and totally in bad faith as it is being made after hearing the cases of the other parties.
The applicant submits that under the Civil Procedure framework, the contest in a suit commenced by plaint lies between Plaintiffs and Defendants. An Interested Party does not ordinarily prosecute an independent claim.
The applicant cites the case of Marigat Group Ranch & 3 Others v Wesley Chepkoiment & Others [20141 e KLR, where the Court held that where a party seeks to assert substantive rights over the subject matter, such a party ought to be joined as a Plaintiff or Defendant rather than remain an Interested Party.
The Applicant has filed a Defence and Counterclaim asserting proprietary interests over the suit property. Such participation goes beyond the limited role of an Interested Party. The procedural incapacity identified by the 4th respondent therefore demonstrates that the Applicant s current designation is inconsistent with the nature of its participation in the proceedings.
The Applicant contends that she cannot effectively prosecute its case while remaining an Interested Party, thereby necessitating intervention by this Honourable Court to regularize its status. The applicant submits that this Honourable Court should exercise its discretion under Order 1 Rule 10 (2) to join or re-designate the Applicant as a substantive Defendant
Order 1 Rule 10 (2) of the Civil Procedure Rules empowers the Court at any stage of proceedings to add a party whose presence is necessary for the effectual and complete adjudication of all questions involved in the suit. In the Marigat Case (Supra) the court recognizes that where a party seeks to agitate proprietary rights, joinder as Plaintiff or Defendant is the proper procedural course. The Applicant is the registered proprietor of the suit property and its proprietary interests lie at the centre of the dispute before Court.
According to the applicant, the application does not seek to introduce a new or unrelated cause of action; rather, it seeks to align the Applicant's procedural status with the substantive issues already pleaded. Regularising the Applicant's designation promotes the overriding objective by enabling the Court to resolve all questions relating to the suit property within one proceeding.
While a Plaintiff's choice of whom to sue is entitled to considerable weight, the Court retains discretion to join a party where their presence is necessary for complete adjudication of the issues. The Applicant is not a stranger seeking entry into the proceedings; it is already before Court and has participated pursuant to prior orders.
The orders sought merely regularize an existing party's procedural capacity. They do not fundamentally alter the nature of the Plaintiff's claim but ensure that all competing proprietary interests are determined in one forum.
The applicant contends that filing a separate suit would result in duplication of proceedings, increased costs, and the risk of conflicting decisions, therefore, that discretion to join the Applicant as a Defendant does not amount to an impermissible imposition upon the Plaintiff but constitutes a necessary step to achieve substantive justice.
On whether the Application is prejudicial or an abuse of the Court process, the applicant contends that the Court’s discretion under Order 1 Rule 10 (2) is guided by the interests of justice and the overriding objective under Sections IA and 1B of the Civil Procedure Act. The Applicant was previously joined by order of the Court and has placed its position on record. All parties are aware of the issues it raises. The Application is brought in good faith to cure a procedural limitation and facilitate complete adjudication of the dispute.
The 4th respondent submits that a suit commenced by way of Plaint gives rise to a judgment and or decree in personam. A judgment in personam is a court decision that directly determines the rights, liabilities and obligations of specific, named parties in a lawsuit. The judgments only binds those involved in the case and their privies, rather than the public at large. This type of judgment is typically enforceable against the named defendant.
The respondent cites the case of Sky Africa Holdings Ltd vs Registrar of Titles & Another (2016) KEHC 4358 (KLR),
The respondent submits that a suit commenced by way of Plaint makes specific allegations against the named Defendant which allegations, the named Defendant is required to specifically respond to. In this case, the primary document framing the cause of action is the Plaint, The Plaint herein does not mention the Applicant. No specific allegations have been raised against the Interested Party. Thus, the question for determination is whether an Interested Party may file a Defence or Counterclaim.
The Interested Party should understand her role in any proceedings that they have been joined to. Thus, it is important for the interested party to not only understand the contributions they should make but also the limitations in the manner of the contributions they make.
It is settled law that an Interested Party must clearly understand both the scope and limitations of its participation in proceedings. An Interested Party's role is confined to assisting the Court on issues already framed by the principal parties and does not extend to introducing new causes of action or independent claims.
The respondent cites the Supreme Court dictum in Francis Karioko Muruatetu. & Another v Republic & 5 Others [20161 eKLR authoritatively pronounced itself on the extent of participation by an Interested Party, stating:
"Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, 01' as framed by the Court from the pleadings and submissions of the principal parties. An Interested Party may not frame its own fresh issues or introduce new issues for determination by the Court,"
The Statement of Defence and Counterclaim filed by the Interested Party in the present suit clearly departs from the issues raised in the Plaint and seeks to introduce new and independent claims. If the Interested Party intended to advance its own cause of action, the proper procedure would have been to do so prior to the hearing of the Plaintiff's case, thereby allowing for amendment of the Plaint and appropriate joinder as a substantive party.
Further, it is trite law that an Interested Party may participate in proceedings by filing witness statements, where necessary, and by making submissions before judgment, but not by filing a Defence or introducing a Counterclaim. This position was affirmed in Malcton Holdings Limited v Waweru.: Lands Registrar & Another (Interested Parties) (ELC Case No. E008 of 2022) [20231 KEELC 18099 (KLR), Whereby the court stated:
"An Interested Party is can participate in the proceedings by filing Witness Statements, (if need be) and submissions before judgement is delivered but not a Defence or purport to introduce afresh claim through a Counterclaim."
The Court in the same decision further held that a Counterclaim is a pleading available only to a named Defendant and not to an Interested Party, who remains a stranger to the pleadings as framed, If indeed the Interested Party has a claim against any of the Defendants, it ought to institute its own independent suit to enable all parties to properly respond,
The respondent relies on Order 7 Rule 1 of the Civil Procedure Rules that further reinforces this position by expressly providing that only a Defendant served with summons to enter appearance may file a Statement of Defence. Allowing the Interested Party's Defence and Counterclaim at this stage would amount to an affront to the right to a fair hearing under Article 50(2) of the Constitution. The record clearly shows that the Plaintiff testified and closed its case in the presence of the Interested Party.
The respondent submits that the 2nd and 3rd Defendants testified and closed their cases in the presence of the Interested Party. The application by the Interested Party is therefore an abuse of the court process and is made in bad faith, having been brought after the other parties had closed their cases. Whereas the said parties have not objected to this application, clearly this application is way out of time. In the circumstances, we pray that the same be dismissed with costs.
I have considered the application and the grounds of opposition and submissions and do find that the applicant seeks to agitate for his substantive rights as a registered proprietor. He claims to be the owner of the property, and therefore he cannot agitate for the same as an interested party. The nature of the claim by the applicant requires that he be substantive party.
I have discerned the application, the pleadings filed and the submissions. The application is brought inter alia under Order 1 Rule 10 of the Civil Procedure Rules. Sub-rule (2) thereof provides:
(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
Also relevant to the application before the court is Order 1 Rule 3 which provides:
All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.
The Supreme Court gave the following guidelines for determining whether an applicant qualifies for admission as an interested party in Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR:
[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
[23] Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.
Munyao J.as he then was observed as follows in Marigat Group Ranch & 3 others v Wesley Chepkoiment & 19 others [2014] eKLR:
… Caution needs to be exercised when a party wants to join proceedings as defendant. This is because the court would not want to impose a party upon the plaintiff unless it will not be prudent to determine the matter without such party being defendant. ...... But where the plaintiff has chosen to assert his rights against certain defendants and not others, the court should be slow in imposing other defendants upon him, for each person has a right to choose against whom to assert his claims against.
In this case, I do find that the Applicant alleges that he is the registered proprietor of all that parcel of land known as MN/V1/3866, the subject of these proceedings. That the Applicant has filed a Statement of Defence and Counterclaim raising substantive issues of ownership, title validity, and compensation that directly go to the root of this dispute. The applicant is a proper person to be enjoined as a defendant. The applicant suffers greater prejudice if not enjoined as defendant than the prejudice suffered by the plaintiff and defendants if not enjoined.
I do exercise my discretion by enjoining the applicant as the 6th defendant. That upon such joinder the Statement of Defence and Counterclaim dated 30/07/2024 and filed on 01/08/2025 be deemed as duly filed and served as the Defence and Counterclaim of the Defendant. That 6th defendant is at liberty to adduce oral and documentary evidence in support of its Defence and Counterclaim. The plaintiff is at liberty to file defence to counter claim within 7 days. The defendants at liberty to respond to the defence and counter claim within 7 days. The matter to start de novo. Mention on 12th May 2024. Hearing on 12th, 13th, and 14th October 2026 at 9.00 am. Costs in the cause.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY AT MOMBASA THIS 16th DAY OF APRIL 2026.
A.O.OMBWAYO
JUDGE
Kensinghton Ltd (herein referred to as the applicant) is seeking orders that she be enjoined and/or converted as a Defendant in this suit. That upon such joinder/conversion, the Statement of Defence and Counterclaim dated 30/07/2024 and filed on 01/08/2025 be deemed as duly filed and served as the Defence and Counterclaim of the Defendant. That she be at liberty to adduce oral and documentary evidence in support of its Defence and Counterclaim. She ultimately prays that the costs of this Application be in the cause.
The application is based on grounds that the Applicant is the registered proprietor of all that parcel of land known as MN/V1/3866, the subject of these proceedings. That the Applicant has filed a Statement of Defence and Counterclaim raising substantive issues of ownership, title validity, and compensation that directly go to the root of this dispute.
The applicant contends that as presently constituted, she appears only as an Interested Party and under the Civil Procedure framework, an interested party cannot adduce evidence or fully participate in the trial as a defendant. That it is therefore necessary and in the interest of justice that the Applicant be joined as a Defendant to enable it to prosecute its Defence and Counterclaim and adduce evidence. That the issues in controversy cannot be effectually and completely determined without the participation of the Applicant as a substantive Defendant.
The applicant believes that no prejudice will be occasioned to any party by allowing this application, as all parties are already seized of the pleadings filed by the Applicant. That it is in the interest of justice, equity, and fair hearing that this Honourable Court exercises its discretion in favour of the Applicant.
The respondent filed grounds of opposition stating that based on the established Civil Procedure principles and Case law, an Interested Party in a suit commenced by Plaint 'is not permitted to introduce a new unrelated or different claim to be prosecuted within the existing suit and that based on established Civil Procedure Principles, Case law and rules of natural justice, a party who is not a named defendant in a suit commenced by way of Plaint cannot purport to impose himself as a defendant and purport to file its own Defence and Counter-Claim as sought by the Applicant. The role of an Interested Party is to participate in the adjudication of issues raised by the primary parties but not to initiate a separate cause of action.
The Applicant's application for joinder as a defendant has come late in the day when a substantial number of parties have closed their cases and therefore the Application is prejudicial and an affront to the right to fair hearing under Article 50(2) of the Constitution.
The Application is an abuse of the Court process and totally in bad faith as it is being made after hearing the cases of the other parties.
The applicant submits that under the Civil Procedure framework, the contest in a suit commenced by plaint lies between Plaintiffs and Defendants. An Interested Party does not ordinarily prosecute an independent claim.
The applicant cites the case of Marigat Group Ranch & 3 Others v Wesley Chepkoiment & Others [20141 e KLR, where the Court held that where a party seeks to assert substantive rights over the subject matter, such a party ought to be joined as a Plaintiff or Defendant rather than remain an Interested Party.
The Applicant has filed a Defence and Counterclaim asserting proprietary interests over the suit property. Such participation goes beyond the limited role of an Interested Party. The procedural incapacity identified by the 4th respondent therefore demonstrates that the Applicant s current designation is inconsistent with the nature of its participation in the proceedings.
The Applicant contends that she cannot effectively prosecute its case while remaining an Interested Party, thereby necessitating intervention by this Honourable Court to regularize its status. The applicant submits that this Honourable Court should exercise its discretion under Order 1 Rule 10 (2) to join or re-designate the Applicant as a substantive Defendant
Order 1 Rule 10 (2) of the Civil Procedure Rules empowers the Court at any stage of proceedings to add a party whose presence is necessary for the effectual and complete adjudication of all questions involved in the suit. In the Marigat Case (Supra) the court recognizes that where a party seeks to agitate proprietary rights, joinder as Plaintiff or Defendant is the proper procedural course. The Applicant is the registered proprietor of the suit property and its proprietary interests lie at the centre of the dispute before Court.
According to the applicant, the application does not seek to introduce a new or unrelated cause of action; rather, it seeks to align the Applicant's procedural status with the substantive issues already pleaded. Regularising the Applicant's designation promotes the overriding objective by enabling the Court to resolve all questions relating to the suit property within one proceeding.
While a Plaintiff's choice of whom to sue is entitled to considerable weight, the Court retains discretion to join a party where their presence is necessary for complete adjudication of the issues. The Applicant is not a stranger seeking entry into the proceedings; it is already before Court and has participated pursuant to prior orders.
The orders sought merely regularize an existing party's procedural capacity. They do not fundamentally alter the nature of the Plaintiff's claim but ensure that all competing proprietary interests are determined in one forum.
The applicant contends that filing a separate suit would result in duplication of proceedings, increased costs, and the risk of conflicting decisions, therefore, that discretion to join the Applicant as a Defendant does not amount to an impermissible imposition upon the Plaintiff but constitutes a necessary step to achieve substantive justice.
On whether the Application is prejudicial or an abuse of the Court process, the applicant contends that the Court’s discretion under Order 1 Rule 10 (2) is guided by the interests of justice and the overriding objective under Sections IA and 1B of the Civil Procedure Act. The Applicant was previously joined by order of the Court and has placed its position on record. All parties are aware of the issues it raises. The Application is brought in good faith to cure a procedural limitation and facilitate complete adjudication of the dispute.
The 4th respondent submits that a suit commenced by way of Plaint gives rise to a judgment and or decree in personam. A judgment in personam is a court decision that directly determines the rights, liabilities and obligations of specific, named parties in a lawsuit. The judgments only binds those involved in the case and their privies, rather than the public at large. This type of judgment is typically enforceable against the named defendant.
The respondent cites the case of Sky Africa Holdings Ltd vs Registrar of Titles & Another (2016) KEHC 4358 (KLR),
The respondent submits that a suit commenced by way of Plaint makes specific allegations against the named Defendant which allegations, the named Defendant is required to specifically respond to. In this case, the primary document framing the cause of action is the Plaint, The Plaint herein does not mention the Applicant. No specific allegations have been raised against the Interested Party. Thus, the question for determination is whether an Interested Party may file a Defence or Counterclaim.
The Interested Party should understand her role in any proceedings that they have been joined to. Thus, it is important for the interested party to not only understand the contributions they should make but also the limitations in the manner of the contributions they make.
It is settled law that an Interested Party must clearly understand both the scope and limitations of its participation in proceedings. An Interested Party's role is confined to assisting the Court on issues already framed by the principal parties and does not extend to introducing new causes of action or independent claims.
The respondent cites the Supreme Court dictum in Francis Karioko Muruatetu. & Another v Republic & 5 Others [20161 eKLR authoritatively pronounced itself on the extent of participation by an Interested Party, stating:
"Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, 01' as framed by the Court from the pleadings and submissions of the principal parties. An Interested Party may not frame its own fresh issues or introduce new issues for determination by the Court,"
The Statement of Defence and Counterclaim filed by the Interested Party in the present suit clearly departs from the issues raised in the Plaint and seeks to introduce new and independent claims. If the Interested Party intended to advance its own cause of action, the proper procedure would have been to do so prior to the hearing of the Plaintiff's case, thereby allowing for amendment of the Plaint and appropriate joinder as a substantive party.
Further, it is trite law that an Interested Party may participate in proceedings by filing witness statements, where necessary, and by making submissions before judgment, but not by filing a Defence or introducing a Counterclaim. This position was affirmed in Malcton Holdings Limited v Waweru.: Lands Registrar & Another (Interested Parties) (ELC Case No. E008 of 2022) [20231 KEELC 18099 (KLR), Whereby the court stated:
"An Interested Party is can participate in the proceedings by filing Witness Statements, (if need be) and submissions before judgement is delivered but not a Defence or purport to introduce afresh claim through a Counterclaim."
The Court in the same decision further held that a Counterclaim is a pleading available only to a named Defendant and not to an Interested Party, who remains a stranger to the pleadings as framed, If indeed the Interested Party has a claim against any of the Defendants, it ought to institute its own independent suit to enable all parties to properly respond,
The respondent relies on Order 7 Rule 1 of the Civil Procedure Rules that further reinforces this position by expressly providing that only a Defendant served with summons to enter appearance may file a Statement of Defence. Allowing the Interested Party's Defence and Counterclaim at this stage would amount to an affront to the right to a fair hearing under Article 50(2) of the Constitution. The record clearly shows that the Plaintiff testified and closed its case in the presence of the Interested Party.
The respondent submits that the 2nd and 3rd Defendants testified and closed their cases in the presence of the Interested Party. The application by the Interested Party is therefore an abuse of the court process and is made in bad faith, having been brought after the other parties had closed their cases. Whereas the said parties have not objected to this application, clearly this application is way out of time. In the circumstances, we pray that the same be dismissed with costs.
I have considered the application and the grounds of opposition and submissions and do find that the applicant seeks to agitate for his substantive rights as a registered proprietor. He claims to be the owner of the property, and therefore he cannot agitate for the same as an interested party. The nature of the claim by the applicant requires that he be substantive party.
I have discerned the application, the pleadings filed and the submissions. The application is brought inter alia under Order 1 Rule 10 of the Civil Procedure Rules. Sub-rule (2) thereof provides:
(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
Also relevant to the application before the court is Order 1 Rule 3 which provides:
All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.
The Supreme Court gave the following guidelines for determining whether an applicant qualifies for admission as an interested party in Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR:
[22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
[23] Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.
Munyao J.as he then was observed as follows in Marigat Group Ranch & 3 others v Wesley Chepkoiment & 19 others [2014] eKLR:
… Caution needs to be exercised when a party wants to join proceedings as defendant. This is because the court would not want to impose a party upon the plaintiff unless it will not be prudent to determine the matter without such party being defendant. ...... But where the plaintiff has chosen to assert his rights against certain defendants and not others, the court should be slow in imposing other defendants upon him, for each person has a right to choose against whom to assert his claims against.
In this case, I do find that the Applicant alleges that he is the registered proprietor of all that parcel of land known as MN/V1/3866, the subject of these proceedings. That the Applicant has filed a Statement of Defence and Counterclaim raising substantive issues of ownership, title validity, and compensation that directly go to the root of this dispute. The applicant is a proper person to be enjoined as a defendant. The applicant suffers greater prejudice if not enjoined as defendant than the prejudice suffered by the plaintiff and defendants if not enjoined.
I do exercise my discretion by enjoining the applicant as the 6th defendant. That upon such joinder the Statement of Defence and Counterclaim dated 30/07/2024 and filed on 01/08/2025 be deemed as duly filed and served as the Defence and Counterclaim of the Defendant. That 6th defendant is at liberty to adduce oral and documentary evidence in support of its Defence and Counterclaim. The plaintiff is at liberty to file defence to counter claim within 7 days. The defendants at liberty to respond to the defence and counter claim within 7 days. The matter to start de novo. Mention on 12th May 2024. Hearing on 12th, 13th, and 14th October 2026 at 9.00 am. Costs in the cause.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY AT MOMBASA THIS 16th DAY OF APRIL 2026.
A.O.OMBWAYO
JUDGE